Rules for handling "controlled unclassified information" would standardize system and increase government transparency, but stronger enforcement mechanisms needed

WASHINGTON - Earlier today, the Obama administration released its
recommendations for federal government agencies' handling of
"controlled-unclassified information" (CUI), namely information that
the government finds sensitive but does not meet the standards for
designation as "classified." The report includes 40 specific
recommendations to standardize the CUI system, facilitate information
sharing within government, and, critically, promote government
transparency. The Presidential Task Force report is the result of the
90-day review ordered by President Obama last May.

The
Constitution Project applauds the recommendations designed to promote
openness by limiting the use of CUI markings and ensuring that
information is only controlled when there is a "compelling requirement"
to do so. However, the Project urges the administration to clarify that
this system should be governed by a presumption of openness, and to
develop additional oversight tools and enforcement mechanisms to ensure
that these policy recommendations are effective.

"The new Task
Force recommendations will go a long way toward promoting transparency
and limiting the use of control markings on government documents," said
Sharon Bradford Franklin, senior counsel at the Constitution Project.
"However, we urge the administration to adopt an explicit presumption
of openness, and to put more teeth into its new policy. The CUI reforms
should include safeguards such as regular audits and a process for the
public to challenge control markings."

In July 2009, the Constitution Project's Liberty and Security Committee released Reining in Excessive Secrecy: Recommendations for Reform of the Classification and Controlled Unclassified Information Systems.
Many of the recommendations in the CUI Task Force report are consistent
with the Project's recommendations in this report. In particular:

The Project is pleased that the CUI Task Force considered the
Constitution Project's report and specifically relied upon it in
crafting its recommendations for CUI markings to expire after a
specified time period.

The Project also welcomes the recommendation that CUI
markings should have no bearing on determinations of whether a document
should be released under the Freedom of Information Act (FOIA).

Also critical is the Task Force's recommendation that a CUI marking is not a basis for withholding a document from Congress or the courts.

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The Constitution Project is a politically independent
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